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MILLER v. BROWN

Nos. 06-2334, 07-1002.

503 F.3d 360 (2007)

Larry MILLER; 11th Senatorial District Republican Committee, Plaintiffs-Appellees, v. Michael BROWN, in his official capacity as Chairman of the Virginia State Board of Elections; Barbara Hildenbrand, in her official capacity as Vice-Chairman of the Virginia State Board of Elections; Jean Jensen, in her official capacity as Secretary of the Virginia State Board of Elections, Defendants-Appellants. Republican Party of Virginia, Amicus Supporting Appellees. Larry Miller; 11th Senatorial District Republican Committee, Plaintiffs-Appellants, v. Michael Brown, in his official capacity as Chairman of the Virginia State Board of Elections; Barbara Hildenbrand, in her official capacity as Vice-Chairman of the Virginia State Board of Elections; Jean Jensen, in her official capacity as Secretary of the Virginia State Board of Elections, Defendants-Appellees. Republican Party of Virginia, Amicus Supporting Appellants.

United States Court of Appeals, Fourth Circuit.

Decided October 1, 2007.

Attorney(s) appearing for the Case

ARGUED: Frank Snead Ferguson, Deputy Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellants/Cross-Appellees. Kenneth Thomas Cuccinelli, II, Cuccinelli & Day, P.L.L.C., Fairfax, Virginia, for Appellees/Cross-Appellants. ON BRIEF: Robert F. McDonnell, Attorney General of Virginia, William E. Thro, State Solicitor General, Stephen R. McCullough, Deputy State Solicitor General, William C. Mims, Chief Deputy Attorney General, Maureen Riley Matsen, Deputy Attorney General, J. Jasen Eige, Senior Assistant Attorney General, James V. Ingold, Senior Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellants/CrossAppellees. Christopher M. Day, Paul A. Prados, Cuccinelli & Day, P.L.L.C., Fairfax, Virginia; Patrick M. McSweeney, Wesley G. Russell, Jr., Jeffrey L. Cimbalo, McSweeney, Crump, Childress & Gould, P.C., Richmond, Virginia, for Appellees/CrossAppellants. Louis N. Joynes, II, Joynes & Gaidies, Virginia Beach, Virginia, for Amicus Supporting Appellees/Cross-Appellants.

Before DUNCAN, Circuit Judge, and WIDENER and WILKINS, Senior Circuit Judges.

Affirmed by published opinion. Senior Judge WILKINS wrote the opinion, in which Judge DUNCAN joined.

OPINION

WILKINS, Senior Circuit Judge:

Three officials of the Virginia State Board of Elections (collectively, "the Board") appeal a district court order holding that Virginia's open primary law, Va. Code Ann. § 24.2-530 (2006), is unconstitutional as applied to the 11th Senatorial District Republican Committee and its chairman, Larry Miller...

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